A no-contest clause, also called an ''

in terrorem ''In terrorem'', Latin for "into/about fear", is a legal threat, usually one given in hope of compelling someone to act without resorting to a lawsuit or criminal prosecution. ''In terrorem'' clauses (referred to in English as no-contest clau ...

'' clause, is a clause in a legal document, such as a

contract A contract is an agreement that specifies certain legally enforceable rights and obligations pertaining to two or more parties. A contract typically involves consent to transfer of goods, services, money, or promise to transfer any of thos ...

or a

will Will may refer to: Common meanings * Will and testament, instructions for the disposition of one's property after death * Will (philosophy), or willpower * Will (sociology) * Will, volition (psychology) * Will, a modal verb - see Shall and will ...

, that is designed to threaten someone, usually with

litigation A lawsuit is a proceeding by one or more parties (the plaintiff or claimant) against one or more parties (the defendant) in a civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. ...

criminal prosecution In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Can ...

, into acting, refraining from action, or ceasing to act. The phrase is typically used to refer to a clause in a will that threatens to disinherit a beneficiary of the will if that beneficiary challenges the terms of the will in

court A court is an institution, often a government entity, with the authority to adjudicate legal disputes between Party (law), parties and Administration of justice, administer justice in Civil law (common law), civil, Criminal law, criminal, an ...

. Many

states State most commonly refers to: * State (polity), a centralized political organization that regulates law and society within a territory **Sovereign state, a sovereign polity in international law, commonly referred to as a country **Nation state, a ...

in the United States hold a no-contest clause in a will to be unenforceable, so long as the person challenging the will has

probable cause In United States criminal law, probable cause is the legal standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal and for a court's issuing of a search warrant. One definition of the standar ...

to do so.

No-contest clause in wills

The Uniform Probate Code (UPC) §§ 2-517 and 3‑905 allow for no contest clauses so long as the person challenging the will does not have

to do so. Uniform Probate Code (UPC) § 2-517. Penalty Clause for Contest, replicated at § 3‑905. Penalty Clause for Contest. Both found a
University of Pennsylvania Law School website page on Uniform Probate Code
. Accessed October 5, 2009. The full wording is: The UPC has been adopted in several smaller

, including

Alaska Alaska ( ) is a non-contiguous U.S. state on the northwest extremity of North America. Part of the Western United States region, it is one of the two non-contiguous U.S. states, alongside Hawaii. Alaska is also considered to be the north ...

, Idaho,

Montana Montana ( ) is a landlocked U.S. state, state in the Mountain states, Mountain West subregion of the Western United States. It is bordered by Idaho to the west, North Dakota to the east, South Dakota to the southeast, Wyoming to the south, an ...

, and

New Mexico New Mexico is a state in the Southwestern United States, Southwestern region of the United States. It is one of the Mountain States of the southern Rocky Mountains, sharing the Four Corners region with Utah, Colorado, and Arizona. It also ...

, but also by

Florida Florida ( ; ) is a U.S. state, state in the Southeastern United States, Southeastern region of the United States. It borders the Gulf of Mexico to the west, Alabama to the northwest, Georgia (U.S. state), Georgia to the north, the Atlantic ...

, one of the larger states in population.Cornell Law School website page on Uniform Probate Code
Accessed October 5, 2009. Some states allow for "living probate" and "ante mortem" probate, which are statutory provisions which authorize

testator A testator () is a person who has written and executed a last will and testament that is in effect at the time of their death. It is any "person who makes a will."Gordon Brown, ''Administration of Wills, Trusts, and Estates'', 3d ed. (2003), p. ...

s to institute an adversary proceeding during their life to declare the validity of the

, in order to avoid later will contests.

No-contest clauses by state

California

In California, no-contest clauses are of limited effect, and will divest a party that unsuccessfully contests a will containing such a clause only if the court determines that the party brought the action without probable cause. Probate Code §§ 21310–21315. These statutes, which comprise California's statutory scheme governing the enforceability of no-contest clauses, became effective January 1, 2010. As of that date, the predecessor statutes are repealed.

Florida

In Florida no-contest clauses in wills are specifically unenforceable, irrespective of probable cause, pursuant to statute. See Fla. Stat. 732.517 (2009) which states:

Massachusetts

Massachusetts General Laws allow for penalty-clause-for-contest language in wills. See M.G.L. Ch. 190B, Art. II, Sec. 2-517.

Nevada

Nevada law specifically directs the court to enforce no-contest clauses. These statutes recognize that a beneficiary may, without penalty, seek enforcement of the will or trust, seek a judicial ruling as to the meaning of the will or trust. The statutes also recognize an exception where legal action challenging the validity of the document is "instituted in good faith and based on probable cause that would have led a reasonable person, properly informed and advised, to conclude that there was a substantial likelihood that the trust or other trust-related instrument was invalid."

New York

New York has rejected the "probable cause" defense to enforcement of such clauses. Such clauses are given full effect upon challenge. Some exceptions apply, e.g. election against the will by a minor, contest on ground of forgery or revocation by later Will. New York's estates, powers and trusts law specifically states:

Texas

Texas allows for a no-contest clause to be challenged for just cause and provided the action to challenge was made in good faith.

Oregon

Oregon enforces no-contest clauses against losing parties even when there was probable cause to contest the will.https://www.oregonlegislature.gov/bills_laws/ors/ors112.html, Oregon Revised Statutes, Section 112.272(4).

References

{{reflist Wills and trusts Contract clauses